FCC launches three-pronged probe into wireless industry

The FCC plans to launch three investigations of the wireless industry at its …

The Federal Communications Commission has announced its agenda for this Thursday's Open Commission meeting, and the list of items is sure to keep wireless industry lawyers quite busy for the foreseeable future. Three proposed Notices of Inquiry are on the menu. They include launching a "truth-in-billing" investigation that will ask "whether there are opportunities to protect and empower American consumers by ensuring sufficient access to relevant information about communications services," a notice on the state of competition in wireless, and an inquiry into "concrete steps" the FCC can take to "encourage innovation and investment" in the field.

It's turning into something like a perfect storm for big wireless over at the Commission. The meeting will come four workdays after today's deadline for Apple, AT&T, and Google to respond to letters from the FCC asking why Apple nixed the Google Voice application for the iPhone. AT&T has issued a press release declaring that the telco "does not manage or approve applications for the App Store," but also acknowledged that it got the letter, "and will, of course, respond to it."

That longer response, along with Apple's and Google's, will surely be noted at Thursday's meeting. The question is whether or how they will be integrated into one of these three inquiries. The FCC's letters to the three companies referenced two relevant ongoing agency proceedings: handset exclusivity and wireless open access.

A noble gesture

FCC Chair Julius Genachowski has promised a proceeding on concerns that exclusive handset deals between device makers and big wireless carriers shut out lots of consumers, especially in rural areas that the big four carriers often do not serve. The most famous example of an exclusive arrangement is, of course, the iPhone/AT&T duumvirate. But Verizon has been doing everything it can to head off further regulation in this area as well, by offering its own hand-crafted voluntary commitments. In late July it responded to a chorus of protest from rural wireless providers with this olive branch: "Effective immediately for small wireless carriers (those with 500,000 customers or less)," Verizon's CEO Lowell C. McAdam announced, "any new exclusivity arrangement we enter with handset makers will last no longer than six months."

This has not satisfied its intended audience, to put it mildly. Earlier in the month the Rural Telecommunications Group sent letters to key Congressional leaders and the FCC urging them not to take Verizon's proposal seriously. "While at first glance this offer might seem like a noble gesture, it is far from a complete solution to a problem that is pervasive, industry-wide, and growing," RTG wrote. "Promises made by just one mobile operator designed to benefit, at best, only a small subset of the country's population do nothing to promote true competition in the mobile marketplace. Something more expansive is required, and soon."

Confirm a consumers' right

The other proceeding mentioned in the letters is the wireless open access docket. That discussion is largely ruled by VoIP provider Skype, which has patiently petitioned the FCC for some time to apply the agency's Carterfone open device principle to wireless networks as it has long been applied to wired. The company, as is well known, has an uneasy relationship with the iPhone. Consumers can access it on the device via WiFi, but not AT&T's 3G service. In fact, Skype met with the Commission in early August "to discuss the relationship between the letters sent last week to AT&T, Apple, and Google regarding Apple’s rejection of Google Voice for iPhone application, and the pending Petition filed by Skype to confirm a consumer’s right to use communications software and attach nonharmful devices to wireless networks."

In April 2008, then-FCC Chair Kevin Martin rejected the Skype petition, telling attendees at a wireless trade show that various industry declarations towards openness and the impending Sprint's Xohm WiMAX network—also committed to the principle—made further regulation unnecessary. But the FCC's explicit reference to the wireless open access proceeding in its letters to AT&T, Apple, and Google (even mentioning the docket number) sends a clear signal that the idea is once again at play.

CTIA - The Wireless Association, has already met with the FCC several times this month and last, urging it to reject the Skype petition once more. "The Carterfone regime that Skype wants to foist upon competing wireless carriers was designed for a telecommunications environment in which a single, monopoly provider was sole owner of the only existing network and the monopoly device manufacturer," CTIA Vice President Christopher Guttman McCabe argued in July. "In today’s wireless industry, by contrast, no carrier has more than 32% of the market nor does any carrier have an ownership interest in any of the 33 handset manufacturers currently serving the market."

How these battles will manifest themselves at Thursday's Open Commission meeting is not clear. But the language of the three proposed Notices is so broad that they could encompass these issues and many others, and probably will.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.